Wilcott v. State

• Decision Date: 21 May 1987
• Docket Number: No. 67473,67473
• Parties: 12 Fla. L. Weekly 248 James WILCOTT, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 261

509 So.2d 261

12 Fla. L. Weekly 248

James WILCOTT, Petitioner, v. STATE of Florida, Respondent.

No. 67473.

Supreme Court of Florida.

May 21, 1987.

Michael E. Allen, Public Defender, Second Judicial Circuit, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for respondent.

McDONALD, Chief Justice.

We have for review Wilcott v. State, 472 So.2d 1389 (Fla. 1st DCA 1985), which expressly and directly conflicts with State v. Wimberly, 498 So.2d 929 (Fla.1986). This Court has jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution. The issue is whether a prisoner-defendant is entitled to a jury instruction on simple possession of less than twenty grams of cannabis, pursuant to section 893.13(1)(f), Florida Statutes (1983), when charged with introducing contraband into or possessing contraband in a state penal institution if the only evidence of that possession occurred in the prison. We answer this question in the affirmative and quash the opinion of the district court.

Wilcott, an inmate at the Marianna Community Correctional Center, participated in an outside work program. On July 20, 1984, while checking inventory at his workplace, Wilcott apparently discovered a small bag containing approximately 2.3 grams of cannabis. According to Wilcott's testimony, he stuck the bag down his pants with the intention of later hiding the narcotic somewhere at the worksite where he could use the drug at a future date. Before he could do so, however, an officer from the Marianna center came to pick him up and return him to the correction facility. Upon his return to the center, the officer searched Wilcott and found the cannabis in his underwear. The state subsequently charged Wilcott by information with unlawfully introducing or possessing contraband upon the grounds of a state correctional institution in violation of subsections 944.47(1)(a) and (c), Florida Statutes (1983). During the charge conference, Wilcott's counsel requested a jury instruction on possession of less than twenty grams of cannabis as a lesser included offense. The trial court denied the request and the jury subsequently found Wilcott guilty as charged.

On appeal Wilcott argued that the trial court committed error by denying the requested instruction. Wilcott pointed to two Second District Court of Appeal decisions that found possession of marijuana, a violation of section 893.13, Florida Statutes (1983), to be a lesser included offense of the simultaneous introduction or possession of the same marijuana into a county detention facility. See Tessier v. State, 462 So.2d 123 (Fla. 2d DCA 1985); Dees v. State, 397 So.2d 1145 (Fla. 2d DCA 1981). The district court rejected this argument, however, ruling that sections 893.13 and 944.47 described separate and distinct offenses. The district court affirmed the conviction.

Section 944.47, Florida Statutes (1983), provides in pertinent part:

(1)(a) Except through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:

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4. Any narcotic, hypnotic, or excitative drug or any drug of whatever kind or nature including, but not limited to, ... a controlled substance as defined in s. 893.02(3).

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(c) It is unlawful for any inmate of any state correctional institution or any person while upon the grounds of any state correctional institution to be in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution.

Section 893.02(3), Florida Statutes (1983), lists cannabis as a controlled substance. We find the outcome of this case to be controlled by our recent decision in Wimberly. In Wimberly this Court reaffirmed the viability of the category of lesser included offenses which may or may not be included in the charged offense. 498 So.2d at 930-31. These permissive lesser included offenses must be instructed upon when the pleadings and the evidence demonstrate that the lesser offense is included in the offense charged. ^* As we stated in Wimberly, " '[w]hether a charge of the lesser crimes under category 2 is necessary will require the trial judge to analyze the information or indictment and the proof to determine if elements of category 2 crimes may have been alleged and proved.' " Id. at 931 (quoting Fla.Std. Jury Instr. (Crim.) Notes (2d ed.)). Thus, we must examine the particular circumstances in the case at bar to determine whether the lesser included offense Wilcott argues should have been instructed upon was actually a permissive lesser included offense.

Section 944.47, Florida Statutes (1983), prohibits both the introduction and possession of contraband upon the grounds of a state correctional facility. Cannabis is contraband under section 893.02(3), Florida Statutes (1983). The information charged introduction or possession in the alternative. The evidence shows, and the state acknowledges, that the amount of cannabis involved was less than twenty grams. Thus, misdemeanor possession of less than twenty grams of cannabis under section 893.13(1)(f), Florida Statutes (1983), is, based on the pleadings and the evidence, a lesser included offense of the charged offense. Because it is also the next-lower lesser included offense of the crime of which Wilcott was convicted, the failure to instruct as to that offense constituted reversible error. State v. Bruns, 429 So.2d 307 (Fla.1983); Reddick v. State, 394 So.2d 417 (Fla.1981); Williams v. State, 462 So.2d 577 (Fla. 4th DCA), review denied, 472 So.2d 1182 (Fla.1985).

Accordingly, we quash the decision of the district court and remand for further proceedings consistent with this opinion.

It is so ordered.

OVERTON, EHRLICH and BARKETT, JJ., and ADKINS, J. (Ret.), concur.

SHAW, J., dissents with an opinion.

SHAW, Justice, dissenting.

The majority's reliance on the accusatory pleadings and the evidence at trial to determine whether an offense is a lesser included offense of another is directly contrary to section 775.021(4), Florida Statutes (1983), and to our case law holding that it is only the statutory elements which determine whether offenses are separate or lesser included. Scott v. State, 453 So.2d 798 (Fla.1984); State v. Baker, 452 So.2d 927 (Fla.1984); State v. Gibson, 452 So.2d 553 (Fla.1984).

The wisdom of using only the statutory elements to determine whether offenses are separate or lesser included can be seen by examining the contradictions which occur when the accusatory pleadings and proof at trial are also used. Permissive lesser included offenses were established by Brown v. State, 206 So.2d 377, 383 (Fla.1968), as category four offenses. They were incorporated into our schedule of lesser included offenses as category two offenses when we promulgated the 1981 edition of Florida Standard Jury Instructions in Criminal Cases. ¹ Unlike necessarily lesser included offenses, the statutory elements of permissive lesser included offenses are not subsumed within the statutory elements of charged greater offenses; if they are subsumed, the offenses are necessarily included, not permissively included. Brown. Thus, by definition, they are separate offenses from those charged and are subject to separate convictions and separate sentences. § 775.021(4), Fla.Stat. In my special opinion concurring in result only to Green v. State, 475 So.2d 235, 237 (Fla.1985), I pointed out that the 1981 schedule of lesser included offenses had been statutorily invalidated by section 775.021(4), as amended by chapter 83-156, Laws of Florida, and that we should direct that category two offenses be deleted from the schedule of lesser included offenses. ² I propose now to show that the category of permissive lesser included offenses is also constitutionally invalid.

There are three constitutional imperatives which govern jury instructions on criminal offenses. The first is that it is the legislature, not the courts, which establishes and defines offenses and their relationship to each other. The legislature does so by defining the statutory elements of each criminal offense. The statutory elements of any two offenses determine whether one of the offenses is either a separate or a lesser included offense of the other. The legislature has unequivocally decreed that each separate criminal offense will be subject to separate convictions and separate sentences. Moreover, the legislature has specifically prescribed the method of determining whether any two criminal offenses are separate:

[O]ffenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

§ 775.021(4) (emphasis supplied).

There are only two mutually exclusive categories into which any two given offenses may be placed under section 775.021(4). The offenses are either separate in that each has at least one statutory element unique to itself or one is a lesser included offense in that its statutory elements are subsumed within the statutory elements of the greater offense, i.e., they are the same offense for purposes of charging, and separate convictions or sentences are not permitted. The permissive lesser included offenses in our schedule of lesser included offenses are constitutionally invalid because, contrary to section 775.021(4), they usurp legislative prerogative by treating statutorily...